JUDICIAL INDEPENDENCE AND SUPREMACY IN INDIA

http://adv-a-c-philip.blogspot.in/2016/08/judicial-independence-and-supremacy-in.html

http://adv-a-c-philip.blogspot.in/2016/08/judicial-independence-and-supremacy-in.html

SUPREMACY OF ORGAN IN A BODY.  can be read on the above blog URL

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

8^th August, 2016

AN OPEN LETTER TO THE LEGENDARY FALI S. NARIMAN

To

    Shri Fali S. Nariman,

    Senior Advocate,

    Supreme Court of India,

    New Delhi.

Most Respected Sir,

                   Before the NJAC case, Sir, I had only heard about you, not even heard your arguments; you were a demi-God to me.  In the NJAC case, the hearing of which went on for 31 days, I heard every word of yours with great patience.      I must confess that you no longer remain in my mind to be a demi-God; you are almost 30 years senior to me by age and practice; I have all the respect for you for the age and standing which I am obliged to confer.  I would not have asked any question to you even while I had the greatest of disagreement with you but for the fact that the judgments of the Supreme Court in the NJAC case had not meant the abrogation of the right of 95% of the legal fraternity who hail from humble backgrounds, being the sons and daughters of farmers, teachers, taxi drivers and small time traders, the common man, for an equal opportunity to aspire for the high constitutional office of the Judges of the Supreme Court and High Courts. I would not have asked this question had Articles 14 and 16 of the Constitution, namely, equality before law and equal opportunity for public offices, are not infringed; I would not have asked this question had the will of the people represented by both the Houses of the Parliament and 21 State Assemblies, which have ratified the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (the Acts, for short), had not been thwarted by means of the judgment in the NJAC case, where a Bench of five Hon'ble Judges dared to say that they are quashing the said Acts; I would not have asked this question had I not had equally, if not greater, concern for the majesty of the Supreme Court and its pivotal role as the highest Court of the land and had I not have a deep concern for its feature as the Supreme Court.  Sir, you are the doyen of the Bar, the legend, and in comparison I am no one.  Yet,     I dare to ask this question, for, the energy I draw for it is the power of conviction, the moral power. The questions which I ask are three, namely:

(1)         Sir, you pleaded in the NJAC case that the aforesaid Acts infringed or violated the “independence of judiciary”, one of the basic structures of the Constitution and, therefore, they are liable to be struck down as unconstitutional. You had no case that the said Acts violated any fundamental rights of SCAORA or any of its member; so too of any of the Judges of the higher judiciary whose appointments and transfers were to be regulated by the said Acts.  You had no case that there existed a “person aggrieved” whose fundamental or legal rights were infringed and who is entitled to enforce his remedies which the law will entail in him and the Supreme Court is the forum to enforce such remedies.  Your only case was that the said Acts, which are in the realm of executive or legislative policy, violate the basic structure of the Constitution.  Let me underline that you had no case that anybody’s fundamental right is violated; your only case was that the said Acts violated the basic structure of the Constitution; so too was the case of Shri Anil
Diwan, a no less stalwart as your kind self, representing the Bar Association/Council of India, Shri Dattar, representing the Madras Bar Association, and Shri Bhushan (Centre of all PILs).Let me ask you a simple question – if violation of basic structure of the Constitution is justiciable, who all are entitled to seek such a declaration at the hands of the Supreme Court and who all are entitled to be heard in support or in opposition thereof?  I am sure you will never say that the right to seek such a declaration is the exclusive privilege of leaned and privileged lawyers like you who practice in the Supreme Court. I am sure you will concede that such right is invested in every lawyer who practices in the different parts of the country. I am sure you will also not dispute that such right cannot be the monopoly of lawyers; it has to be conceded to each and every one of the 129 crores people of this country.If basic structure of the Constitution or violation thereof is justiciable and amenable to judicial review, then the entire people of this country have a right to be a co-Petitioner or Defendant to support or oppose it. There cannot be a more ridiculous proposition that a Court should decide a case where it has to concede a right of participation in every citizen either in support of against it.  I am sure you will concede that if SCAORA had a right to seek that the said Acts are unconstitutional, those who supported the said Acts, millions and millions, too had a right to say that the said Acts were constitutional. I am made to understand that hundreds of such petitions are in the offing.

(2)         Secondly, the ordinary lawyers and ordinary citizens of this country are not much concerned about who has supremacy or final say, whether the judiciary or the executive, in the matter of appointment of Judges to the higher judiciary.  An ordinary lawyer who has an ambition to become a Judge has only one question as to whether a day will come when applications are invited for selection and appointment of Judges when he could apply for and submit his expression of interest and whether his application will be fairly considered.  And what the common man is all concerned about is whether he will have the best of Judges from among the available eligible lawyers.  The concern to them is not who is appointing, but who are appointed; whether it is from a small pool of kith and kin of sitting and former Judges of the Supreme Court and High Courts, their juniors, celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses or from a larger pool which will offer greater diversity. The question, therefore, which I pose is, would you be kind enough to address the real issue as to who are selected and how they are selected and appointed.  The common man is not interested in the supremacy of the judiciary or of the executive; what he wants is an independent Judicial Commission which will select the best Judges by recourse to a transparent procedure. Now the question is, will you join us to demand advertisement of the vacancies of Judges by the collegium, invitation of applications, processing the same and selection and appointment of the most eligible and deserving candidates as Judges, no matter even if it is to be by the collegium.

(3)         The third question I ask is, will you make a little sacrifice, which I believe you are duty bound to do, to strengthen the confidence of the common man in the higher judiciary.  The NJAC case, in the eyes of the common man, was nothing but the fox being the jury at the goose’s trial.  Veteran Col. Ved Prakash from Jaipur, told the Constitution Bench in the NJAC case, while it heard the public at large on the ways and means by which the collegium system could be improved, that the judgment in the NJAC case was a judicial coup de’tate; that thousands and thousands of people shared the same opinion.  Hon’ble Justice Khehar is a noble judge whom I hold in high esteem; to me His Lordship is a demi-God.  Yet, the public perception is that His Lordship decided the NJAC case where there is a conflict of interest.  His Lordship is expected to assume the august office of the Chief Justice of India on 5.1.17 and to preside over the collegium.  The public perception is that had the aforesaid Acts not been set aside, His Lordship would not have assumed the absolute power of selection and appointment of judges, which the judgment in the NJAC case conferred upon him, but His Lordship would have only been heading the NJAC where two eminent persons, who were to be selected by a Committee consisting of the CJI, as well, could have negativated a proposal at His Lordship’s hands.

As I said at the outset, you are always seen as the epitome of all virtues, the highest of ethical standards, a role-model for the legal fraternity, nay, even the entire country.  You were known to be highly critical of the collegium system, but after your son Hon’ble Shri Justice Rohinton Nariman was elevated as a Judge of the Supreme Court, the perception, is that your gracious self unconsciously, non-consciously and sub-consciously,though, identified with the judicial fraternity and fought for the collegium which, Sir, you yourself had castigated as opaque, non-transparent and a failed one.  Sir, you practice in the Supreme Court where your son is a Judge; it is plainly against the Rules of the Bar Council of India.  Judges in Mumbai, Punjab & Haryana and Allahabad, where their kith and kin practice in large numbers, may offer an excuse that the Bar Council of India Rules require a strict interpretation and since you are not appearing before the Bench of which your son is a member you commit no breach of ethics.  I dare to ask you in all humility, Sir, are you subscribing to the very same excuse?

                   With respectful regards,

                                                                Yours sincerely,

                                     

Sd/- 

         (Mathews J Nedumpara)

President.

CORE AGENDA OF THE NATIONAL LAWYERS' CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS